1. Heard Mr. P.K. Roy, learned counsel appearing for the petitioner. Also heard Mr. P. Bhowmick, learned Standing Counsel, ASEB appearing for the respondents.
2. This is a writ petition challenging the order dated 20-04-2011 issued by the Chairman and Managing Director, APDCL by which it was held that the two charges i.e. Charge No. 2 and Charge No.3 for which inquiry was conducted have been partially proved against the petitioner and a punishment of stoppage of 3 annual increments with cumulative effect was awarded and his suspension period was treated as absence from duty.
3. The brief facts leading to the filing of this writ petition are as follows; The petitioner who was serving as Senior Manager in Meter Testing and Inspection (MTI) Division of Cachar Electrical Circle, APDCL was suspended on 01-04-2010 in contemplation of a departmental inquiry being undertaken. On 17-05-2010, charge sheet along with the statement of imputations were furnished to the petitioner. In the charge sheet and in the allegation of charges, three charges were framed against the petitioner; Charge No.1; Fraud or dishonesty in connection with the business of the Board, Charge No.2; Neglect of duty and Charge No.3; Breach of ASEB (Officers) Conduct Regulations, 1982. The statements of allegations of charges against the petitioner are reproduced herein below:
'Statement of allegation against Sri. Zakir Ahmed Choudhury, Senior Manager (U/S) MTI Driver, Silchar.
Sri. Zakir Ahmed Choudhury was holding the post of Senior Manager, MTI Division, Silchar with effect from 13.12.2005 till his date of suspension i.e. 31.03.2010.
Regulation 10(1) of ASEB (General Service) Regulations (for official) 1960 laid down that every official of the Board/Company shall discharge the duties assigned to him with integrity and loyalty and promptitude and carry out all lawful orders of his superiors in respect of the duties assigned to him.
The report submitted by the Deputy General Manager, Cachar Electrical Circle on metering system installed against M/s Ladi Steel and M/S Cachar Ispat under Udharbond Electrical Sub-Division prima-facie reveals that the above two industries have been able to pilfer huge quantum of electricity by way of methodical tempering of electrical meters installed in the Sub-station as well as in the consumer premises with active connivance of few erring Company’s officials. Sri. Zakir Ahmed Choudhury, who is holding the post of Senior Manager, MTI Division, Silchar is found involved in acts of commission as detailed below and thus earned notoriety for all pervasive revenue losses to the Company’s exchequer.
Charge No.1. Fraud or dishonesty in connection with the business of the Board.
While analyzing the feeder-wise energy audit of Udharbond electrical Sub-Division to ascertain the reason for high 33 KV Sub-Transmission loss of the Sub Division, it has come to light that average hourly drawal of power by two steel Industries namely M/s Cachar Ispat and M/s Ladi Steel are in the range of 0.3 MW and 0.1 MW respectively which is quite low considering their total connected load. As such, on 09.03.2010, an inspection team comprising of MTI officials visited both the industries to inspect their metering system. After inspection, the senior Manager, MTI Division submitted a load survey report on 10.03.2010 against both the industries. However, no detail analysis of the load survey data was given in the report in spite of the fact that MTI Division, Silchar is entrusted with the responsibility of collecting and analyzing date relating to metering system installed in the consumer’s premises under the circle. In view of lack of comprehensive MTI report, necessary analysis of metering data downloaded from sending end and receiving end meters of Cachar Ispat as well as lone meter of Ladi Steel installed at Udharbond Electrical Sub-Station have been made in the circle office itself in which it is found that the meter installed at M/s Ladi Steel recorded. Some tempering events for which the quantum of power drawn by the industry is shown much less than the actual. This tempering was occurred on 18.01.2010 on 11:00 hours and same was restored on 22.01.2010 on 16:30 hours. This has indicated wrong doing on the switchyard metering system against 33 KV Ladi Steel Feeder emanating from 33/11 KV Udharbond Sub-Station. When inquired, the charged officer informed that above tempering events occurred due to the defective CT-PT set which was subsequently replaced by them on 23.01.2010 by a new CT-PT set. Further, from the load survey report of the download data, it has also come to light that zero power is drawn by both the industries almost every night for a prolonged period of time which is highly unusual.
On scrutiny, it is further observed that new Ct-PT set installed was of the make Suman Control Pvt. Ltd. supplied by the consumers. But in the installation report of MTI Division it is shown as Board’s supply. Also the earlier damaged CT-PT set was of same make. However, the Board purchased Technovel CT-PT set for insallation for this consumer. In this regard it may be stated that for conversion from 11 KV to 33 KV system due to increase of connected load of M/S Ladi Steel, one new 33 KV CT-PT set (make Technovel) was issued against an amount of Rs. 1,17,765/- deposited by M/s Ladi Steel. However, this CT-PT set was never installed, rather as revealed from MTI Division’s installation report, CT-PT set of Suman Controls Pvt. Ltd make was installed at M/S Ladi Steel on 07.04.09, where no information about accuracy class was mentioned. Hence, it is evident that Sri Jakir Ahmed Choudhury, being the Senior Manager, MTI Division, Silchar violated the existing norms by installing CTPT set supied by the consumer instead of CT-PT set procured by the APDCL. The fate of Technovel make CT-PT set purchased for M/S Ladi Steel and issued for installation is unknown. It is worth mentioning that installation of consumer supplied 33 KV CT-PT set at 33 KV Udharbond Sub-Station made by the MTI Division, Cachar was not as per stipulated specification. In this regard, explanation given by the charged officer that he did not flouted Company’s norms by installing a consumer’s supplied CT-PT set instead of APDCL supply one, is not acceptable. Moreover restoration of tempering of the earlier defective CT-PT set to normal status on 21.01.20 one day before replacement of CT-PT set is intriguing and raised doubt and hence malpractices on the part of Sri Jakir Ahmed Choudhury, Senior Manager, MTI Division is prima-facie made out. It is also seen that the Senior Manager, MTI Division submitted testing details of two CT-PT set supplied by the consumer where name of the Company is mentioned as APDCL in the last report sheet dated 02.04.09 whereas the name of the APDCL came into being in the month of November, 2009 only. Such contradiction implies that concerned test report sheet lacks authenticity and is bogus. Further, it was also observed that test register was maintained in a very casual manner, without any signature of MTI officials. In view of the above there are enough reasons to doubt as to whether CT-PT sets in question were actually tested or not by the MTI Division, Silchar.
In view of the facts as stated above, it is prima-facie revealed that Sri Zakir Ahmed Choudhury, Senior Manager, MTI Division, Silchar committed irregularities in installation of metering system against M/S Ladi Steel, Udharbond and thereby allowed the concerned consumer to pilfer huge quantam of electricity in a methodical tempering of electrical meters installed in the Sub-Division premises with connivance of some erring company personnel. The conduct evinced by Sri Zakir Ahmed Choudhury in the instant case is dubious in nature and tainted with malafide intention to provide undue financial gain to both the industries as mentioned hereinabove for personal gractification and such conduct on his part amounts to misconduct under relevant regulations of Company and hence, Shri Jakir Ahmed Choudhury, Senior Manager (U/s) is charged for committing acts of fraud and dishonesty under Regulation 10(1)(b) of ASEB (General Service) Regulation (for officers), 1960.
Charge No.2. Neglect of duty
The inspection report of the Nodal officer, R-APDRP on metering installation at 33 KV Udharbnond Sub-Division noted following lapses on the part of MTI Division, Silchar during inspection
1. Installation of a consumer supplied 33 KV, CT_PT set at 33 KV Udharbond Sub- Station was done by MTI Division, Silchar though the set was not of stipulated specification. This set was connected to M/S Ladi Steel.
2. Seal between the Meter base and cover is suspected to have tempered in the H.T Static Meter (NO.ASE 60822) of above feeder, MTI Division, Silchar failed to detect it in routine inspection. Similar was the case for the (Meter NO. ASE 08462) of M/S Cachar inpat. These facts were detected only on 31.03.2010 by a team from MTI Guwahati.
3. The H.T Static Meter (Sl. NO. ASE 18246) at the premises of M/S Cachar ispat was used as biling Meter. The said Meter was changed on suspected defect and later on found defective while tested at MTI Laboratory at Guwahati later on.
4. M/S Ladi Settl was getting power upto 07.04.2009 through a 11 KV feeder from Udharband 33 KV Sub-Station. A check meter (NO. ASE 18243) was in the circuit. The MTI team led by Nodal Officer, R-APDRP from Guwahati found the Meter tempered while in use.
From the above, it is apparent that Shri Jakir Ahmed Choudhury, Senior Manager, MTI Division, Silchar, is quite negligent in his duties and totally failed to detect irregularities as mentioned hereinabove and such conduct on the part of Shri Jakir Ahmed Choudhury, Senior Manager (U/S) attracts the disciplinary action against him under Regulation 10(1)(i) of ASEB (General Service) Regulation, 1960 and Shri Choudhury is charged under this regulation/
Charge No.3 Breach of ASEB (officers) Conduct Regulations, 1982.
Regulation 3 (1) of ASEB (officers) conduct Regulation, 1982 lays down that every officers of the Board/Company shall at all time maintain absolute integrity and devotion. Further, under Regulation 12 of ASEB Officers (conduct) Regulation 1982, no officer of the Board shall, except with previous approval of the Board engage directly or indirectly in any trade or business or undertake any other employment. From the report of Deputy General Manager, Cachar Electrical Circle, it is seen that one vehicle bearing number plate No. AS-11-C-1078 was being utilized by MTI Division, Silchar on hire basis till 02.04.10. On enquiry it has came to light that said vehicle is registered in the name of Zakir Ahmed Choudhury, S/o Late M.A. Choudhury, Kanakpur Pt-1, Sonai Road Silchar who is no other than Senior Manager, MTI Division (/S). Hence, it is apparent that Sri Choudhury had entered into a cohort arrangement with the vehicle contractor and utilized his own vehicle to earn an unauthorized sum of money from APDCL in violation of ASEB Officers (conduct) Regulation by failing to maintain absolute integrity. It is further notice that he also evaded income tax by not showing the income earned through the said means. Being a responsible officer of the Board it is noticed that Sri Choudhury failed to maintain absolute integrity and devotion to his duties and the acts of omission and commission as narrated above on his part amounts to breach of ASEB Officers (Conduct) Regulations (for officers) 1960 and Sri Jakir Ahmed Choudhry is charged under said regulation.
A list of documents by which and names of witness by whom the above charge are sought to be proved is enclosed as Annexure-I.
Chairman & Managing Director
APDCL,, Bikulee Bhawan, Guwahati'
4. After the above stated documents were supplied to the petitioner, he was asked to reply to the charges. Accordingly, the petitioner submitted his reply to the charges to the Chairman and Managing Director, APDCL denying the charges. Not being satisfied with the explanation given by the petitioner, the inquiry officer conducted the inquiry by examining the witnesses including the petitioner himself. After having completed the proceeding, the inquiry officer submitted his report. The findings of the inquiry officer are given herebelow:
Charge number 1 (a) The allegation that the meters of two bulk consumers viz M/S Ladi Steel and M/S CAchar inpat showed unusually low consumption of power, considering their connected load is not challenged by the charged officer. His contention is that it is primarily the duty of Udharbond Sub-Station (where the metering systems are installed) staff who are under the control of the Sub-Division Engineer Udharbond Electrical Sub-Division, to check/prevent malpractices of this nature. There is nothing in the evidence/record to counter this stand of the charged officer.
This part of charge number 1 has not been proved.
(b) The allegation is that on 7-4-2009 the MTI Division installed a Sumon Control make CT-PT set, supplied by the consumer, in the Udharbond Sub-Station for M/S Ladi Steel, though a Technovel make CT-PT set was officially procured and issued for the purpose. It is also alleged that when this set went out of order on January 2010, another Sumon Control make CT-PT set was installed in its place MTI Division. Though this set was also supplied by the consumer, in the installation report it was mentioned as supplied by the Board. The Sumon Control Make CT-PT sets do not conform to all the specifications laid down by the Board and are amenable to manipulation with regard to the energy consumed.
The defence plea against this part of charge number 1 is that, installation of CT-PT sets is the responsibility of the concerned Sub-Divisional Engineer/Senior Manager and not of the MTI Division. The MTI Division comes into the picture only for testing the metering instruments including CT-PT sets and commissioning of the same after installation is done by the Sub-Divisional Engineer.
Dy. General Manager, Silchar Electrical Circle (Management Witness No.1), in course of his cross examination mentioned that installation of CT-PT set is done by the concerned Electrical Sub-Division and commissioning and sealing is done by the MTI Division. The allegation that the charged officer installed Sumon Control make CT-PT set for M/S Ladi Steel does not stand, as it is, but it has other ramifications.
Dy. General Manager, RAPDRP (Management Witness No.7) in course of his deposition as also in his report (exhibit 0) dated 16-4-2010 mentioned that the Sumon Control make CT-PT sets did not conform to the ASEB/APDCL guidelines in material aspects. He mentioned that the Sumon Control make CT-PT sets had double Ration whereas ASEB guidelines provide for CT-PT sets with single CT Ratio. Dual CT Ratio sometimes lead to mistake in calculating the energy consumed because of manipulation/change in Multiplying Factor. He also mentioned that the Sumon Control make CT-PT sets were of accuracy Class of 1.0 whereas ASEB adopted Accuracy Class of 0.5 only since about 2005. As per this Witness higher accuracy class like 0.5 ensures a more accurate calculation of energy consumed.
It is mentioned in exhibit 3 that M/S Ladi Steel had deposited Rs. 1.17 lakh for a CT-PT set and an order (exhibit 2) dated 7-1-2009 was placed by the office of the Dy. General Manager for a Technovel make CT-PT set. It is also mentioned that a Technovel make CT-PT set was received by the Central Stores Division and it was issued to Silchar Electrical Division I, for installation against the amount deposited by M/S Ladi Steel. But this set was not installed and instead of this, a Sumon Control make CT-Pt set was installed (vide exhibit 7) on 7-4-2009 after it was tested (exhibit 4) by MTI Division on 2-4-2009. It appears from exhibit 2 that copies of the supply order for the Techovel make CT-PT set was sent ot the charged officer as also to the Sub-Divisional Engineer. In spite of this, a consumer supplied CT-PT set was tested (by MTI Division) installed (By Udharbond Electrical Sub-Division) and authorities about this. Obviously the consumer was interested in having a Sumon Control make CT-PT set instead of the Board approved Technovel make set, possibly because the Sumon Control set is amenable to mainipulation, unlike the technovel set. There was obviously, collaboration involvement of the Electrical Sub-Division and the MTI Division in this matter. When the CTPT set commissioned on 7-4-2009 went out of order, it was replaced by another consumer supplied Sumon Control set on 23-1-2010 (vide exhibit1)
It is interesting to note that the charged officer in his letter dated 11-3-2010 addressed to the Dy. General Manager (Annexure 2 of the written statement dated 2-6-2010) tried to establish that from technical points of view the Sumon Control make CT-PT sets are superior to Technovel make sets. But from the deposition of Management Witness Nos. 1, 3 and 7 the position seems to be otherwise.
This part of charge number 1 has been proved. Apart from the charged officer some others are also involved in the matter.
(c) Analysis of metering data of M/S Ladi Steel showed that there was some tempering event which occurred at 11 hours on 18-1-2010 and the same was restored at 16-30 hours on 22-1-2010. The charged officer informed the Dy. General Manager that the tempering event occurred due to the defective CT-PT set which was subsequently replaced by a new CT-PT set on 23-1-2010. Restoration of facie indication of adoption of malpractices by the charged officer.
The charged officer in his written statement claimed that M/S Ladi Steel was allowed un-metered power supply by the Sub-Divisional Engineer for five days from 18-1-2010 to 23- 1-2010 and he had nothing to do with this. There is nothing in the evidence to indicate involvement of the charged officer in this matter.
This part of charge number 1 has not been proved.
(d) Against the allegation that though the name APDCL came in to being only in November 2009, in a test report (exhibit 4) dated 2-4-2009 the name of the company was mentioned as APDCL and that this indicated lack of authenticity of the test reports, the charged officer in his written statement mentioned that all the records of testing of meters, CT-PT sets etc are kept in the PC and that after the APDCL came into being the name of the company was changed in the PC and therefore when the Dy. General Manager asked for copies of the test reports in March 2010, the name of the company came out as APDCL in the print out. This argument has not been rebutted anywhere in the evidence.
This part of charge number 1 has not been proved.
(e) The allegation that the Test Register was maintained in a casual manner without any signature is practically admitted by the charged officer. He mentioned in his written statement that the rough working during the testing is recorded in the Test Register but no signatures are put. The Test Reports are recorded in the PC and whenever required, print outs are taken from the PC and signed by the concerned officers. This defence is not acceptable. If a register is required to be maintained, the purpose cannot be served by jotting down rough workings only and that also without even the signature of the person who writes down the said rough working.
This part of charge number 1 stands proved on admission.
Part (b) and (e) of charge number 1 have been proved.
Charge number 2. (i) The matter of installation of a consumer supplied CT-PT set at Udharbond Sub-Station for M/S Ladi Steel, though it was not of stipulated specification, has been dealt with under charge number 1(b) and a definite finding has also been arrived at. There need not be a second finding on the same matter
This part of charge number 2 has not been proved on the gourng that this matter has already been dealt with under charge number 1(b)
(ii) The allegation is that the seal between the meter base and cover of the static meter number ASE 60822 of M/S Ladi Steel and meter number ASE 08462 of M.S Cachar Ispat were suspected to have been tempered with by the Nodal Officer RAPDRP (Management Witness No. 7), when he inspected the meters on 31-3-2010. But the MTI Division, Silchar failed to detect this during their routine inspection. In his report (exhibit 9) the Nodal Officer, APDRP mentioned in both the cases that this suspicion should be confirmed by the manufacture’s expert. However, in course of his deposition (cross examination) he stated that he did not know as to whether the meters were sent to the manufacturer for examination by experts. There is nothing in the evidence to indicate that the meters were examined by experts to ascertain the facts. Suspicion alone is not enough to prove an allegation.
This part of charge number 2 has not been proved.
(iii) The allegation is that the receiving end meter number ASE 18246, which was used as billing meter, was changed by the Nodal Officer, APDRI during his inspection, on suspicion that it was defective. It was actual found to be defective when it was tested at the MTI Laboratory Guwahati. In his report (exhibit 9), at page 4 it is mentioned that this meter was replaced by a new one as the sending end meter was also replace by anew meter, though no abnormality was observed at site. It is also mentioned in the said report that this meter was tested at MTI Laboratory, Guwahati and was found to be defective and failed to pass the test parameters. Since it is specifically mentioned in exhibit 9 that no abnormality was observed at site, it is difficult to find fault with the charged officer, if he or his staff failed to detect the defect, which was detected only after test at the MTI laboratory at Guwahati.
This part of charge number 2 has not been proved.
(iv) The allegation is that till 7-4-2009 a meter number ASE18243 was in use for M/S Ladi Steel. The Nodal Officer, RAPDRP while inspecting Udharbond Sub-Station in March 2010 found one co0mplete metering system including the said meter in abandoned condition. The Nodal Officer (Management Witness No. 7) in his report (exhibit 9) at page 5 mentioned that 'the evidences confirms that it was tempered when on use'. The same report also mentioned that certain seals and the ultrasonic welded plastic strip were found to be tempered with.
This meter was not in use for almost a year and was lying in abandoned condition, when it was examined by Management Witness No. 7 in end March 2010. In the circumstances, it will not be fair to hold the charged officer responsible for not being able to detect the tempering in course of routine checking, while the meter was in use before 7-4- 2009. Again, the same report (exhibit () mentions that the meter was tested in MTI laboratory, Guwahati on 8-4-2010 and the results were found to be satisfactory.
This part of charge number 2 has not been proved.
Charge number 2 as a sho0lw has not been proved.
Charge number 3. The allegation is that one vehicle bearing number plate No. AS-11- C-1078 was being utilized by MTI Division, Silchar on hire basis till 2-4-2010. On enquiry it came to light that this vehicle was registered in the name of the charged officer. It is thus apparent that the charged officer entered into an arrangement with the vehicle contractor and utilized his own vehicle to earn unauthorized sums of money from APDCL in violation of the provisions of ASEB Officers (Conduct) Regulation 1982.
The charged officer in his written statement dated 2-6-2010 and also in his defence statement dated 11-10-2010 mentioned that he had purchased a vehicle number AS-11-C- 0782 (not AS-11-C-1078 as mentioned it the charge sheet) in the year 2005 for his personal use. Subsequently, it became a burden on his and he had to sell it off to one Md. Abdul Basit Choudhury through a sale deed on 7-6-2008. He signed all the papers necessary for transferring the vehicle in the name of the purchaser. His contention is that the new owner might have entered into an agreement with the vehicle contractor for its leasing out to the APDCL on rental basis, and the said vehicle 'was found to have been supplied through the contractor in the MTI Division against the allotted vehicle to the Senior Manager, MTI Division since February 2009'.
There are three papers in the record in connection with this charge viz.
(i) a letter dated 4-5-2010 from the Dy. General Manager, Cachar Electrical Circle, addressed to the Chairman, mentioning the details as incorporated it the charge, except that the vehicle number mentioned in this letter is AS-11-C-0782 but in the charge sheet this number is mentioned as AS-11-C-1078, apparently by mistake.
(ii) A letter dated 28-4-2010 from the Dy. General Manager, Cachar Electrical Circle, addressed to the District Transport Officer, Cachar, Silchar, requesting him to furnish the name and address of the registered owner of the vehicle. There is signed endorsement dated 3-5-2010 of the District Transport Officer on this letter itself, mentioning that as per his office record, the name and address is Zakir Ahmed Choudhury, S/O Late M. A. Cahoudhury, Kanakpur Pt. I Silchar and
(iii) A letter dated 7-7-2010 from M/S KIen Travels, Silchar addressed to the Dy. General Manager, Cachar Electrical Cirlce mentioning that the owner of vehicle number AS11C0782 as per registration is Mr. Zak Ahmed Choudhury and that the said vehicle was taken from M. Choudhury on hire basis at the rate of Rs. 8,500/- per month. It is also mentioned that monthly payment has been made to Mr. Choudhury Senior Manager, MTI, Silchar and that the vehicle was hired from 2009 till 1-3-2010.
The charged officer has furnished a copy of the sale deed of the vehicle date 7-6-2006 as Annexure 20 with his written statement dated 2-6-2010. The deed is not a registered one, but was presented before a Notary on 7-6-2006. Again though the sale of the vehicle as claimed by the charged officer was effected on 7-6-2008, it appears from the endorsement dated 3-5-2010 of the District Transport Officer that till that date the buyer did not care to have the registration transferred to his name.
All this casts a serious doubt on the authenticity of the sale and the purpose for which this sale was prepared.
In view of the above charge number 3 stands proved.
(A. K. Choudhury)
5. The inquiry officer in his report has stated that part of charge No. 1 and 3 are found to be proved but as for the charge No. 2, it has been found to be not proved as a whole. After the report of the inquiry officer was placed before the disciplinary authority, the disciplinary authority issued show cause notice to the petitioner asking him to explain as to why he should not be punished on the finding of charge No. 1 and 3. The show cause notice is dated 24-12-2010. Accordingly, the petitioner submitted his explanation on 19-01-2011 to the Chairman and Managing Director, APDCL. On receipt of the same, the Chairman and Managing Director, APDCL i.e the respondent No.2 passed the impugned order dated 20-04-2011 wherein, it was held and decided that the charge No. 2 against the petitioner has been proved therefore penalty of stoppage of three annual increment with cumulative effect is awarded to him and the period of his suspension would be treated as absence from duty.
6. The case of the petitioner as submitted by his learned counsel in brief is that when the inquiry officer did not find charge No.2 to be proved, if the disciplinary authority has another opinion or different finding that the charged officer is guilty of that charge, a noting should have been made first to that effect and a chance of being heard should have been given to the charged officer before such conclusion is drawn and penalty is awarded. In support of his case, learned counsel for the petitioner has referred to para 29 of the judgment passed by the Hon’ble Supreme Court in the case of Yoginath D. BADGE-vs- State of Maharashtra and Another, reported in (1999) 7 SCC 739. The content of the paragraph 29 are reproduced here below:
'We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979 which enables the Disciplinary Authority to disagree with the findings of the Inquiring Authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The Rule does not specifically provide that before recording its own findings, the Disciplinary Authority will give an opportunity of hearing to a delinquent officer.
But the requirement of "hearing" in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees with the findings of the Inquiring Authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to - indicate that the findings recorded by the Inquiring Authority do not suffer from any error and that there was no occasion to take a different view. The Disciplinary Authority, at the same time, has to communicate to the delinquent officer the "Tentative" reasons for disagreeing with the findings of the Inquiring Authority so that the delinquent officer may further indicate that the reasons on the basis of which the Disciplinary Authority proposes to disagree with the findings recorded by the Inquiring Authority are not germane and the finding of "not guilty" already recorded by the Inquiring Authority was not liable to be interfered with.'
7. Learned counsel also referred to a judgment of this High Court passed by a Division Bench in the case of Bidyut Buragohain-vs-State of Assam and Ors, reported in 2013 (1) GLT 943. Para 9 of the judgment is also reproduced here below:
'9. Therefore, even though the Enquiry Officer had given a finding that the charges against the petitioner were not proved or could not be established, the same was not binding upon the disciplinary authority and it could have come to a different conclusion based on the materials already existing in the enquiry report. However, law requires that the disciplinary authority gives an opportunity to the charged officer of being heard before proceeding to impose any penalty on the basis of his own findings not consistent or contrary to the findings given by the Enquiry Officer with reasons thereof. In the present case, what we have noted is that the disciplinary authority, after re-appreciation of the evidence which had emerged in course of the inquiry and other materials came to the conclusion that even if charges Nos. 2, 4, 6 and 7 could not have been proved, charge No. 1 has been partially proved and charges Nos. 3 and 5, which are serious in nature have been proved beyond doubt. Though the disciplinary authority may be entitled to come to such a conclusion, the fact remains that the said conclusion is contrary to the findings recorded by the Enquiry Officer as discussed above. Therefore, if the disciplinary authority comes to a different or contrary conclusion to that of the Enquiry Officer and draws its own conclusion, law requires that the charged officer be given an opportunity of being heard against the contrary or different decision reached by the disciplinary authority with the reasons thereof before proceeding to impose any penalty as has been held by the Supreme Court in a number of cases, viz., in Punjab National Bank & Ors. Vs. Shri Kunj Behari Misra (supra), Yoginath D. Bagde Vs. State of Maharastra, reported in MANU/SC/0583/1999MANU/SC/0583/1999: (1999) 7 SCC 739
8. Learned counsel appearing for the respondents submitted that the charge under charge No. 2(i) and charge under charge No.1 (b) are same. Therefore, when it is held that charge under charge No.1 (b) is proved it has to be accepted that charge under charge No. 2 (i) is already proved as such, there was no need of making a note of the finding by the disciplinary authority and of giving a chance of being heard to the petitioner. Learned counsel further submitted that departmental proceedings are quasi-judicial therefore, strict rules of evidence does not apply. It is sufficient if there is preponderance of probability. To support his submission the learned counsel has referred to para 17 of the judgment passed by the Hon’ble Supreme Court in the case of Moni Shankar vs. Union of India (UOI) and Ors, reported in 2008 3 SCC 484.
'The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely - preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality'
The learned counsel further submitted that applicability of principles of natural justice would depend on the facts and circumstances of each case. Under the facts and circumstances of this case, there has not been violation of principles of natural justice. In support of his submission the learned counsel referred to para 22 of the judgment passed in the case of Maharashtra State Board of Secondary and Higher Secondary Education,
reported in 1991 2 SCC 716. Para 22 of the said judgment is reproduced here below:
'From this perspective, the question is whether omission to record reasons vitiates the impugned order or is in violation of the principles of natural justice. The omnipresence and omniscience of the principle of natural justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play. But the applicability of the principles of natural justice is not a rule of thumb or a straight jacket formula as an abstract proposition of law. It depends on the facts of the case nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances. It is seen from the record and is not disputed, that all the students admitted, the talcum of fabrication and it was to his or her advantage and that the subject/subjects in which fabrication was committed belong to him or her. In view of these admissions the Inquiry Officer obviously did not find it expedient to reiterate all the admissions made. If the facts are disputed, necessarily the authority or the Inquiry Officer, on consideration of the material on record, should record reasons in support of the conclusion reached. Since the facts are admitted, the need to their reiteration was obviated and so only conclusions have been stated in the reports. The omission to record reasons in the present case is neither illegal, nor is violative of the principles of natural justice. Whether the conclusions are proved or not is yet another question and would need detailed consideration.'
9. Mr. P.K. Roy, learned counsel for the petitioner, in reply, submitted that the charge under charge No.2 (1) and charge No. 1 (b) are never the same and therefore, such conclusion as submitted by the learned counsel for the respondents cannot be drawn. Learned counsel drew the attention of this Court to the findings of charge No. 2 (1) and charge No. 1 (b). In view of the submissions of both the learned counsels, it needs to be examined whether charge No. 2(1) and charge No.1(b) are one and the same or not. Charge No. 1 (b) and Charge No. 2 (i) are reproduced here below:
'Charge Number 1 (b) On scrutiny it was further observed that the CT-PT set installed was of the make Sumon Control Pvt and supplied by the consumer. But in the installation report of the MTI Division, it was shown as supplied by the Board. It was also noted that the replaced damaged CT-PT set was also of Sumon Control make. Earlier, for conversion from 11 KV to 33 KV system due to increase of connected load of M/S Ladi Steel, one new 33 KV CT-PT set (Technovel make) was issued against a deposit of Rs. 1,17, 765/- made by M/S Ladi Steel. But this CT-PT set was never installed and in its place a CT-PT set of Sumon Control make was installed at M/S Ladi Steel on 7-4-2009 but no information about its accuracy class was mentioned. The charged officer as Senior
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Manager MTI Division violated the existing norms by installing a CT-PT set supplied by the consumer instead of the CT-PT set procured by APDCL for this very consumer. In fact the whereabouts of the Technovel make CT-PT set purchased for M/S Ladi Steel and issued for installation is not known. Again, the CT-PT set supplied by the consumer and installed at M/S Ladi Steel by MTI Division was not as p[er specification stipulated by the Board. Charge Number 2 (i) Installation of a consumer supplied CT-PT set at Udharbond Sub- Station, thought it was not of stipulated specification. This set was connected to M/S Ladi Steel.' Charge No.2: Neglect of duty under Regulation 10(1(i) of ASEB )(General Service) Regulations (for Officers), 1960. Inspection report of the Nodal Officer, R-APDRP on metering installation at 33 KV Udharbond Sub-Station noted the following lapses on the part of MTI Division, Silchar. Clause (i) Installation of a consumer supplied CT-PT set at Udharbond Sub- Station, though it was not stipulated specification. This set was connected to M/S Ladi Steel. Charge No. 1; Fraud or dishonesty in connection with the business of the Board/Company under Regulation 10(1)(b) of ASEB (General Service) Regulations (for Officers), 1960. Clause (b); on scrutiny it was further observed that the CT-PT set installed was of the make Sumon Control Pvt. Ltd and supplied by the consumer. But in the installation report of the MTI Division, it was shown as supplied by the Board, it was also noted that the replaced damaged CT-PT set was also of Sumon Control make. Earlier for conversion from 11KV to 33 KV system due to increase of connected load if M/S Ladi Steel, one 333 KV CT-PT set (Technovel make) was issued against a deposit of Rs. 1,17,765/- made by M/S Ladi Steel. But this CT-PT set was never installed and ints place a CT-PT set of Sumon Control make was installed at M/S Ladi Steel on 07-04-2009 but no information about is accuracy class was mentioned. The charge officer as Senior Manager, MTI Division violated the existing norms by installing a CT-PT set supplied by the consumer instead of the CT-PT set procured by APDCL for this very consumer. In fact the whereabouts of the Technovel make CT-PT set purchased for M/S Ladi Steel and issued for installation isnot known. Again, the CT-PT set supplied by the consumer and installed at M/S Ladi Steel by MTI Division was not as per specification stipulated by the Board. 10. By mere reading of the two charges, it appears that the two charges are different and not the same. Therefore, the findings made in one of the charges cannot be accepted as findings for the other charge. On reading of the findings of charge No.1 (b) at paragraph 3, it would be seen that the inquiry officer has recorded his findings as the charge does not stand. In view of the above, I am not inclined to accept the submission of the learned counsel for the respondents. Further, on reading the findings of the inquiry officer on charge No.2, it would also be seen that the inquiry officer has recorded his findings that the same is not proved. In view of all these clear findings made by the inquiry officer and the principles laid down by the Hon’ble Supreme Court and followed by this High Court in the judgment referred to by the learned counsel for the petitioner, this Court is of the view that the disciplinary authority before passing the impugned order dated 20-04-2011 should have given a chance of being heard to the petitioner. Since he has not done so, there has been clear violation of the principles of natural justice. Therefore, the impugned order dated 20-02-2011 is not sustainable. Accordingly, it is quashed and set aside. In consequence, the appellate order dated 24-11-2011 is also quashed and set aside. It is however, left open to the disciplinary authority to record his note and give a chance of being heard to the petitioner and pass any appropriate order permissible under law. In case, the disciplinary authority decides to take up the proceedings afresh, the same hall be done and completed within three months from today. 11. Writ petition is accordingly disposed of.